Notice of Amendment to the Program Comment To Exempt Consideration of Effects to Rail Properties Within Rail Rights-of-Way, 31075-31082 [2019-13779]

Agencies

• Historic Preservation, Advisory Council

[Federal Register Volume 84, Number 125 (Friday, June 28, 2019)]
[Notices]
[Pages 31075-31082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13779]



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ADVISORY COUNCIL ON HISTORIC PRESERVATION


Notice of Amendment to the Program Comment To Exempt 
Consideration of Effects to Rail Properties Within Rail Rights-of-Way

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of Adoption of Amendment to the Program Comment to 
Exempt Consideration of Effects to Rail Properties within Rail Rights-
of-Way.

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) has 
approved an amendment to the Program Comment to Exempt Consideration of 
Effects to Rail Properties within Rail Rights-of-Way. The amendment 
extends the deadline for the Department of Transportation to prepare 
and publish the implementing guidance to allow implementation of the 
property-based approach.

DATES: The amendment went into effect on June 10, 2019.

ADDRESSES: Address any questions concerning the amendments to Jaime 
Loichinger, Office of Federal Agency Programs, Advisory Council on 
Historic Preservation, 401 F Street NW, Suite 308, Washington, DC 
20001.

FOR FURTHER INFORMATION CONTACT: Jaime Loichinger, (202) 517-0219, 
[email protected].

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act, 54 U.S.C. 306108, requires federal agencies to 
consider the effects of their undertakings on historic properties and 
to provide the Advisory Council on Historic Preservation (ACHP) a 
reasonable opportunity to comment with regard to such undertakings. The 
ACHP has issued the regulations that set forth the process through 
which federal agencies comply with these duties. Those regulations are 
codified under 36 CFR part 800 (Section 106 regulations).
    Under Section 800.14(e) of those regulations, agencies can request 
the ACHP to provide a ``Program Comment'' on a particular category of 
undertakings in lieu of conducting individual reviews of each 
individual undertaking under such category, as set forth in 36 CFR 
800.4 through 800.7. An agency can meet its Section 106 
responsibilities with regard to the effects of particular aspects of 
those undertakings by taking into account an applicable Program Comment 
and following the steps set forth in that comment.
    On August 17, 2018, the ACHP issued the Program Comment to Exempt 
Consideration of Effects to Rail Properties within Rail Rights-of-Way 
at the request of the U.S. Department of Transportation (USDOT). See 83 
FR 42920 (August 24, 2018). This Program Comment accelerates the review 
of undertakings affecting rail properties within rail rights-of-way 
under Section 106 of the National Historic Preservation Act and meets 
the requirement of Section 11504 of the Fixing America's Surface 
Transportation Act. The Program Comment can be used by any federal 
agency with responsibility to consider the effects of undertakings 
within rail rights-of-way.
    The Program Comment is comprised of two major parts: (1) An 
activity-based approach, and (2) a property-based approach. The 
activity-based approach provides a list of activities in Appendix A for 
which, when the specific conditions are met, no further Section 106 
review is required. The property-based approach establishes a process 
whereby project sponsors can opt to work with the relevant USDOT 
Operating Administration and stakeholders to develop a list of excluded 
historic rail properties that would continue to be subject to Section 
106 review, and exempt from review the effects of undertakings to all 
other historic rail properties within a designated area. While the 
activity-based approach was effective immediately, the property-based 
approach does not go into effect until USDOT publishes implementing 
guidance. This amendment extends the deadline for USDOT to publish the 
implementing guidance to October 14, 2019.
    In May 2019, the USDOT requested that the ACHP amend its Program 
Comment. As a result of the 35-day partial government shutdown earlier 
this year, the additional time necessary to review guidance in 
accordance with USDOT's new departmental review process, and to allow 
adequate time for necessary stakeholder reviews, USDOT was not able to 
meet the original deadline in the Program Comment and therefore 
requested a one-time 150-day extension to develop and issue the 
guidance. USDOT expects this amendment will constitute a one-time 
extension.
    In considering USDOT's request, ACHP staff discussed the amendment 
with ACHP members during the Federal Agency Programs Committee call on 
May 20, 2019, and also during a conference call for all members which 
took place on May 30, 2019. Comments were received regarding the 
members' interest in discussing the draft guidance during the next ACHP 
business meeting in July. USDOT was also asked to provide additional 
context for why a 150-day extension was needed, and USDOT emphasized 
that the uncertainty of its new internal review and other factors made 
such a request necessary.
    The ACHP membership voted unanimously to adopt the amendment on 
June 10, 2019.
    What follows is the text of the Program Comment, incorporating the 
adopted amendment:

Program Comment To Exempt Consideration of Effects to Rail Properties 
Within Rail Rights-of-Way, as Amended Advisory Council on Historic 
Preservation

    Section 106 of the National Historic Preservation Act (NHPA), 54 
U.S.C. 306108 (Section 106), requires federal agencies to take into 
account the effects of their undertakings on historic properties and to 
provide the Advisory Council on Historic Preservation (ACHP) a 
reasonable opportunity to comment with regard to such undertakings. The 
ACHP has issued regulations that set forth the process through which 
federal agencies comply with these responsibilities. Those regulations 
are codified under 36 CFR part 800 (Section 106 regulations).
    Under section 800.14(e) of the Section 106 regulations, agencies 
can request the ACHP to provide a program comment on a particular 
category of undertakings in lieu of conducting separate reviews of each 
individual undertaking under such category, as set forth in 36 CFR 
800.3 through 800.7. Federal agencies can satisfy their Section 106 
responsibilities with regard to the effects of undertakings on rail 
properties located in railroad and rail transit rights-of-way (rail 
ROW) by following this program comment and the steps set forth therein.

I. Introduction

    The ACHP issued this program comment to exempt consideration of 
effects under Section 106 to rail properties located within rail ROW in 
August 2018. The amendment to this program comment is for the sole 
purpose of extending the timeline for development of the Implementing 
Guidance for the Property-Based Approach under section IV.C. This 
program comment has been developed in accordance with Section 11504 of 
the FAST Act (49 U.S.C. 24202), which mandated the development of a 
Section 106 exemption for ``railroad rights-of-way.'' More 
specifically, it required the Secretary of Transportation to submit a 
proposed exemption to the ACHP for consideration, and for the ACHP to

[[Page 31076]]

issue a final exemption not later than 180 days after the date of 
receipt of the U.S. Department of Transportation's (USDOT) submittal.
    This program comment establishes two methods to meet the statutory 
directive: An activities-based approach and a property-based approach. 
The activities-based approach described in section III exempts from 
Section 106 review the activities listed in Appendix A, ``Exempted 
Activities List,'' provided the conditions outlined therein are met. 
Those activities involve maintenance, repair, and upgrades to rail 
properties that are necessary to ensure the safe and efficient 
operation of freight, intercity passenger, commuter rail, and rail 
transit operations. While those activities may over time alter various 
historic elements within rail ROW, these changes are likely to be 
minimal or not adverse and are necessary to continue meeting the 
transportation needs of the nation. The property-based approach 
described in section IV provides an optional process for identifying 
excluded historic rail properties that are subject to Section 106 
review, while exempting consideration of effects to other rail 
properties.
    If a federal agency responsible for carrying out, licensing, 
permitting, or assisting an undertaking with the potential to affect 
historic rail properties meets the terms of this program comment, its 
Section 106 responsibility to take into accounts those effects will be 
satisfied.

II. Applicability

A. Applicability of Program Comment

    1. The program comment applies to undertakings that may affect rail 
properties located within rail ROW. Any federal agency responsible for 
an undertaking located within rail ROW may utilize this program comment 
to satisfy its Section 106 responsibilities for those undertakings.
    2. Under the Surface Transportation Project Delivery Program, 
codified at 23 U.S.C. 327, a state may assume the Secretary of 
Transportation's responsibilities to comply with Section 106 for 
certain projects or classes of projects. In such cases, the state may 
rely on this program comment to fulfill its Section 106 
responsibilities.
    3. Where a program alternative developed pursuant to 36 CFR 800.14, 
such as a statewide programmatic agreement, delegates Section 106 
responsibility to another entity, that entity may also utilize the 
terms of this program comment for relevant undertakings as applicable. 
This program comment does not supersede or modify any existing program 
alternatives, including existing executed programmatic agreements. In 
cases when this program comment and one or more other program 
alternatives apply to a proposed undertaking, the federal agency has 
discretion to determine which program alternative to follow.

B. Continued Applicability of Section 106

    1. This program comment does not apply to, and the federal agency 
must comply with the requirements of 36 CFR part 800, or adhere to the 
terms of an applicable program alternative executed pursuant to 36 CFR 
800.14, for the following:
    a. Undertakings within rail ROW in the following situations:
    i. Undertakings that are located within or would affect historic 
properties located on tribal lands;
    ii. Undertakings consisting of activities not included in Appendix 
A and that may affect an excluded historic rail property designated by 
USDOT pursuant to section IV;
    iii. Undertakings that could affect historic buildings, structures, 
sites, objects, or districts that do not have a demonstrable 
relationship to the function and operation of a railroad or rail 
transit system;
    iv. Undertakings that could affect archaeological sites located in 
undisturbed portions of rail ROW, regardless of whether the sites are 
associated with railroads or rail transit systems. An archaeologist 
meeting the Secretary of the Interior's Professional Qualifications 
(SOI qualified professional) may assist in identifying undisturbed 
soils; and
    v. Undertakings that could affect historic properties of religious 
and cultural significance to federally recognized Indian tribes or 
Native Hawaiian organizations (NHOs).
    b. Undertakings that are not within rail ROW. For undertakings for 
which the area of potential effects (APE) is partially within but 
extends beyond rail ROW, this program comment applies only to the 
portions of the undertaking within rail ROW. Federal agencies must 
consider potential effects to properties adjacent to rail ROW that 
could be affected by the undertaking, including noise or vibration 
effects or changes to a historic property's setting.
    2. If an unanticipated discovery of a non-rail historic property, 
archaeological site of any nature, or human remains, or an 
unanticipated adverse effect on a previously identified non-rail 
historic property is made during the implementation of an exempted 
activity listed in Appendix A, the Section 106 requirements at 36 CFR 
800.13 and/or applicable burial law, as appropriate depending on the 
nature of the resource, apply because effects to such resources are not 
covered by this program comment. At minimum, the Project Sponsor must 
cease all work in the affected area, secure the area, and notify the 
federal agency within 72 hours. The federal agency will consult with 
the State Historic Preservation Officer (SHPO), federally recognized 
Indian tribes, NHOs, and any other stakeholders as appropriate, to 
determine the appropriate course of action. If an undertaking involves 
multiple exempted activities listed in Appendix A, those that do not 
involve or affect the non-rail resource, as determined by the federal 
agency, may continue. The Project Sponsor must comply with any 
applicable state and/or local law regarding the resource.
    C. This program comment does not alter the requirements of any 
applicable easements, covenants, and/or state or local historic 
preservation ordinances. Other federal and state laws such as the 
National Environmental Policy Act and Section 4(f) of the USDOT Act 
also remain applicable, as appropriate.

III. Activities-Based Approach To Exempting Consideration of Effects 
Under Section 106

    A. Undertakings to maintain, improve, or upgrade rail properties 
located in rail ROW that are limited to the activities specified in 
Appendix A are exempt from the requirements of Section 106 because 
their effects on historic rail properties are foreseeable and likely to 
be minimal or not adverse. The activities included in Appendix A are 
exempt from further Section 106 review regardless of whether the rail 
properties affected are eligible for or listed on the National Register 
of Historic Places or whether the activities may affect an excluded 
historic rail property as designated by USDOT pursuant to section IV.
    B. If a SHPO, a federally recognized Indian tribe, or an NHO 
believe an undertaking carried out under Appendix A is adversely 
affecting or has adversely affected a historic rail property, the SHPO, 
Indian tribe, or NHO may notify the federal agency responsible for the 
undertaking of its concern. The federal agency will promptly 
investigate the concern within 72 hours of the notification. The 
federal agency will then determine the appropriate course of action, in 
consultation with the Project Sponsor, SHPO, Indian tribe, NHO, and 
other stakeholders, as appropriate.

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IV. Property-Based Approach To Exempting Consideration of Effects Under 
Section 106

    Project Sponsors may opt to collaborate with a USDOT Operating 
Administration (OA) to designate excluded historic rail properties 
within a defined study area, as described in section IV.A, for which 
the federal agency must comply with requirements of Section 106 for 
undertakings that have the potential to affect those properties. Once a 
USDOT OA formally excludes historic rail properties within a study 
area, consideration of effects to all other evaluated rail properties 
within that study area shall be exempt from Section 106 review for any 
undertaking by any federal agency. In accordance with section IV.C. 
below, USDOT will publish implementing guidance that will provide 
further detail regarding the identification and evaluation of excluded 
historic rail properties. This property-based approach shall go into 
effect on the date USDOT publishes the implementing guidance no later 
than October 14, 2019.

A. Identification of Excluded Historic Rail Properties

    1. A Project Sponsor that opts to follow the property-based 
approach to identify excluded historic rail properties must follow the 
steps outlined below, in accordance with the implementing guidance. To 
provide maximum flexibility and utility in this process, a Project 
Sponsor can opt-in on its preferred timeline.
    a. A Project Sponsor must clearly define the study area, i.e., the 
portion of rail ROW to be evaluated, which can be identified by 
location (e.g., state, county), name of rail corridor, railroad, rail 
transit system or line, and/or mile-post information, etc.
    b. A Project Sponsor may choose to evaluate for designation as 
excluded historic rail properties either (i) all rail properties in the 
defined study area, or (ii) a particular property type or types, such 
as rail bridges, stations and depots, tunnels, etc. within the defined 
study area.
    c. A Project Sponsor's evaluation efforts should also be informed 
by a variety of available and existing information, including historic 
context studies, local and state inventories, surveys and evaluations; 
railroad company records (e.g., bridge inventories or inspection 
reports); knowledgeable railroad and rail transit personnel; railroad 
and rail transit historical society museum and archival collections; 
railroad and rail transit enthusiast website publications; state or 
local historic preservation organizations; and other relevant 
documentation and professional experience and expertise. Prior to 
submitting its proposed list to the USDOT OA, each Project Sponsor must 
notify the SHPO(s) in the state(s) within which the study area lie(s), 
and Indian tribes or NHOs who may attach religious and cultural 
significance to historic properties within the study area, of its 
evaluation efforts to identify excluded properties and request their 
input. If existing information is not available to determine the 
potential historic significance of rail properties within the defined 
study area, the USDOT OA may require the Project Sponsor to conduct a 
physical survey of the study area carried out by or under the direct 
supervision of individuals meeting the SOI's professional 
qualifications.
    d. A Project Sponsor must submit to the USDOT OA the rail 
properties it proposes be designated as excluded historic rail 
properties, along with a summary of its evaluation efforts including 
whether it evaluated all rail properties within the study area or only 
a certain type(s) of rail property, in accordance with the implementing 
guidance.
    2. Once a Project Sponsor submits a proposal to designate excluded 
historic rail properties for a study area to the USDOT OA, the USDOT OA 
will take the following actions to review and designate excluded 
historic rail properties:
    a. The USDOT OA will review each proposal received from a Project 
Sponsor in accordance with the implementing guidance. The USDOT OA 
shall notify and request the input of the SHPO(s), Indian tribes, and/
or NHOs when reviewing a Project Sponsor's proposal. The USDOT OA will 
have the discretion to require a Project Sponsor to conduct additional 
evaluation and/or provide additional documentation to demonstrate that 
the Project Sponsor made a reasonable effort to identify potential 
excluded rail properties. Following its review of a Project Sponsor's 
proposal, the USDOT OA will make the proposed list, modified as 
necessary based on its review and any consultation or additional 
evaluation or documentation, available for public review and comment, 
and will consider input from interested parties and the public before 
designating the excluded historic rail properties within a study area. 
The USDOT OA may seek input from the ACHP, including advice regarding 
resolution of any objections or concerns from commenters, before making 
such designations. The USDOT may, as needed, consult with the Keeper of 
the National Register to resolve questions or disagreements about the 
National Register eligibility of any rail properties.
    b. The USDOT OA will designate excluded historic rail properties 
within a study area within 12 months of receipt of a Project Sponsor's 
adequately supported proposal, in accordance with the implementing 
guidance.
    c. USDOT will publish and periodically update the list of 
designated excluded historic rail properties on its website 
(www.transportation.gov.).

B. Effect of Designation as an Excluded Historic Rail Property

    1. All undertakings that may affect USDOT-designated excluded 
historic rail properties are subject to Section 106. However, 
undertakings that include activities listed in Appendix A require no 
further Section 106 review regardless of the rail property that would 
be affected, including excluded historic rail properties.
    2. Once a USDOT OA designates excluded historic rail properties 
within a study area and the list is published on the USDOT website, 
consideration of effects to all other evaluated rail properties within 
that study area are exempt from Section 106 review. If a Project 
Sponsor chooses to evaluate only a specific rail property type, rather 
than all historic properties, within a study area, then consideration 
of effects to rail properties other than the type evaluated remain 
subject to Section 106.

C. Implementing Guidance

    1. By October 14, 2019, USDOT, in coordination with the ACHP and 
other federal agencies who may have an interest in utilizing the 
Program Comment, will publish guidance for implementing the property-
based approach.
    2. The guidance will: Provide further instruction and examples for 
evaluating rail properties for potential designation as excluded 
historic rail properties to remain subject to Section 106; describe the 
process by which a Project Sponsor may propose excluded historic rail 
properties to a USDOT OA, including early coordination between the 
Project Sponsor and the USDOT OA; establish timeframes for USDOT OA 
review of proposals and designation of excluded historic rail 
properties; and establish public involvement methods.

V. Definition of Terms

    Any terms not defined below shall follow the definitions in the 
NHPA, 54 U.S.C. 300301-300321, and in 36 CFR parts 60 and 800.

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    A. ``Area of potential effects'' is defined in 36 CFR 800.16(d) and 
means the geographic area or areas within which an undertaking may 
directly or indirectly cause alterations in the character or use of 
historic properties, if any such properties exist. The area of 
potential effects is influenced by the scale and nature of an 
undertaking and may be different for different kinds of effects caused 
by the undertaking.
    B. ``Excluded historic rail properties'' means those historic 
properties that illustrate the history of the development of the 
nation's railroads or rail transit systems and:
    1. Are at least 50 years old, possess national significance, and 
meet the National Register eligibility criteria as defined in 36 CFR 
60.4;
    2. are less than 50 years old, possess national significance, meet 
the National Register eligibility criteria, and are of exceptional 
importance;
    3. were listed in the National Register, or determined eligible for 
the National Register by the Keeper pursuant to 36 CFR part 63, prior 
to the effective date of the Program Comment and retain eligibility as 
determined by the USDOT OA; or
    4. are at least 50 years old and meet the National Register 
eligibility criteria at the state or local level of significance, as 
determined by the USDOT OA.
    C. ``Historic property'' is defined in 36 CFR 800.16(l) and means 
any prehistoric or historic district, site, building, structure, or 
object included in, or eligible for inclusion in, the National Register 
of Historic Places maintained by the Secretary of the Interior. This 
term includes artifacts, records, and remains that are related to and 
located within such properties. The term includes properties of 
religious and cultural importance to a federally recognized Indian 
tribe or Native Hawaiian organization that meet the National Register 
criteria.
    D. ``In-kind'' means that new materials used in repairs or 
replacements match the material being repaired or replaced in design, 
color, texture, other visual properties, and, where possible, 
materials. For more information, see The Secretary of the Interior's 
Standards for Rehabilitation, at https://www.nps.gov/tps/standards/rehabilitation.htm.
    E. ``National significance'' means a historic property that is 
eligible or listed in the National Register and either:
    1. Designated as a National Historic Landmark;
    2. designated as a Historical Civil Engineering Landmark;
    3. listed as nationally significant in its nomination or listing in 
the National Register; or
    4. determined by a USDOT OA to have significance at the national 
level.
    F. ``Project Sponsor'' means an entity such as a state, tribal or 
local government, joint venture, railroad commission, compact 
authority, port authority, transit agency or authority, or private 
company that is eligible to receive federal financial assistance (e.g., 
grant, loan). A Project Sponsor may also be an entity that requires a 
federal permit, license, or approval to carry out a proposed activity 
in rail ROW (e.g., a permit under Section 404 of the Clean Water Act 
issued by the Army Corps of Engineers or a permit under Section 9 of 
the Rivers and Harbors Act of 1899 issued by the United States Coast 
Guard).
    G. ``Rail properties'' means infrastructure located within rail ROW 
that has a demonstrable relationship to the past or current function 
and operation of a railroad or rail transit system, including but not 
limited to: Rails and tracks, ties, ballast, rail beds, signal and 
communication systems, switches, overhead catenary systems, signage, 
traction power substations, passenger stations/depots and associated 
infrastructure and utilities, freight transfer facilities, boarding 
areas and platforms, boarding platform shelters and canopies, bridges, 
culverts, tunnels, retaining walls, ancillary facilities, ventilation 
structures, equipment maintenance and storage facilities, railyards and 
rail transit yards, parking lots and parking structures, landscaping, 
passenger walkways, and security and safety fencing. Rail properties 
may also include a section of a railroad or rail transit line. The 
definition does not include properties with no demonstrable 
relationship to the function and operation of a railroad or rail 
transit system, such as: Adjacent residential, commercial or municipal 
buildings; or property unrelated to existing or former railroads and 
rail transit lines that is proposed to be used for new rail 
infrastructure.
    H. ``Railroad and Rail Transit Rights-of-Way'' means the land and 
infrastructure that have been developed for existing or former 
intercity passenger rail, freight rail, rail transit operations, or 
that are maintained for the purpose of such operations. Rail ROW 
includes current and/or former railroad or rail transit lines 
regardless of current ownership and whether there is rail service 
operating on the railroad or rail transit line. It includes property 
that was previously developed for railroad or rail transit use even 
though the infrastructure has been modified or removed, and the 
property may lack visual evidence of previous railroad or rail transit 
use. It does not include land that was never developed for railroad or 
rail transit use. Rail ROW includes and may be identifiable by the 
presence of infrastructure that has a demonstrable relationship to the 
past or current function and operation of a railroad or rail transit 
system that commonly includes but is not limited to the rail properties 
specified in the definition above.
    I. ``Section 106'' means Section 106 of the National Historic 
Preservation Act, 54 U.S.C. 306108.
    J. ``Study area'' means the portion of rail ROW identified for the 
purposes of the evaluation under the property-based approach described 
in section IV. It may be delineated by: Location (e.g., state, county); 
name of rail corridor, railroad, rail transit system or line; or mile-
post information.
    K. ``Undertaking'' is defined at 36 CFR 800.16(y) and means a 
project, activity, or program funded in whole or in part under the 
direct or indirect jurisdiction of a federal agency, including those 
carried out by or on behalf of a federal agency; those carried out with 
federal financial assistance; and those requiring a federal permit, 
license, or approval.
    L. ``Undisturbed portions of rail ROW'' means soils that have not 
been physically impacted by previous construction or other ground 
disturbing activities such as grading. Undisturbed soils may occur 
below the depth of previously disturbed soils or fill.
    M. ``USDOT OA'' means the United States Department of 
Transportation's Operating Administrations, including the Federal 
Railroad Administration, the Federal Transit Administration, and the 
Federal Highway Administration.

VI. Effective Date

    The activities-based approach to exempting consideration of effects 
under Section 106, as described in section III, shall go into effect on 
the date the program comment is issued by the ACHP. At that time, 
federal agencies may immediately utilize the list of exempted 
activities in Appendix A. This includes undertakings that have not yet 
been initiated and undertakings for which the Section 106 review 
process is underway but not completed.
    The property-based approach to exempting consideration of effects 
under Section 106, as described in section IV, shall go into effect on 
the date USDOT publishes the implementing guidance in accordance with 
section IV.C.

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VII. Program Comment Review

    Within one year of the issuance of this program comment, and every 
two years thereafter, the USDOT OAs and the ACHP shall evaluate the 
ongoing effectiveness and efficiency of the implementation of this 
program comment. The USDOT OAs shall review their use and application 
of the program comment, and may invite transportation stakeholders to 
participate in this review as appropriate.

VIII. Amendment

    The ACHP may amend this program comment after consulting with the 
USDOT OAs and other relevant federal agencies, the National Conference 
of State Historic Preservation Offices (NCSHPO), National Association 
of Tribal Historic Preservation Officers (NATHPO), tribal 
representatives, the National Trust for Historic Preservation, and 
representatives from the railroad and rail transit industry, as 
appropriate. The ACHP will publish a notice in the Federal Register 
informing the public of any amendments that are made to the program 
comment.

IX. Withdrawal

    The ACHP may withdraw this program comment, pursuant to 36 CFR 
800.14(e)(6), by publication of a notice in the Federal Register 30 
days before the withdrawal will take effect.

Appendix A: Exempted Activities List

I. General Rule

    A. The federal agency is responsible for determining if an 
undertaking is covered by one or more activities in the Exempted 
Activities List. At its discretion, the federal agency may require 
the Project Sponsor to provide relevant documentation, such as 
plans, photographs, or materials specifications, so that the federal 
agency can determine whether the Exempted Activities List applies.
    B. Whenever possible, historic materials must be repaired rather 
than replaced. At its discretion, the federal agency may require the 
Project Sponsor to provide written justification explaining why 
repair is not feasible. In cases where existing historic materials 
are beyond repair, replacement must be carried out in-kind as 
defined below.
    C. Several of the activities in the Exempted Activities List 
require that the work be ``in-kind.'' For purposes of this program 
comment, ``in-kind'' means that new materials used in repairs or 
replacements match the material being repaired or replaced in 
design, color, texture, other visual properties, and, where 
possible, materials. For more information, see The Secretary of the 
Interior's Standards for Rehabilitation, at https://www.nps.gov/tps/standards/rehabilitation.htm. Except where specified in the Exempted 
Activities List, a Project Sponsor is not required to involve an 
SOI-qualified professional in carrying out in-kind work. However, 
the federal agency, at its discretion, may require the Project 
Sponsor to provide documentation demonstrating that the work would 
be in-kind, utilize non-damaging or reversible methods, etc.
    D. Certain activities, as specified in the Exempted Activities 
List, require that the federal agency and Project Sponsor ensure the 
work is performed by or under the supervision of individuals that 
meet the SOI's Professional Qualification Standards in Architectural 
History, Architecture, and/or Historic Architecture (see 36 CFR 
Appendix A to Part 61), as appropriate, and must be performed in 
accordance with the SOI Standards for the Treatment of Historic 
Properties (https://www.nps.gov/tps/standards.htm). If an SOI-
qualified professional is not available to assist in the evaluation 
and/or design of a specified activity, that activity is not exempt 
from Section 106 review.
    E. The Exempted Activities List does not apply to archaeological 
sites of any nature located within undisturbed portions of rail ROW. 
Therefore, if an exempted activity would cause ground disturbance in 
undisturbed portions of the rail ROW, the federal agency is 
responsible for complying with Section 106 regarding consideration 
of potential effects to archaeological sites before approving the 
undertaking.
    F. The Exempted Activities List does not apply to non-railroad 
or rail transit related buildings or structures located within or 
adjacent to rail ROW within an undertaking's APE. The federal agency 
remains responsible for determining whether an activity in the 
Exempted Activities List has the potential to affect non-rail 
historic properties and for complying with Section 106 with regard 
to those properties before approving the undertaking.
    G. If an unanticipated discovery of a non-rail historic 
property, archaeological site of any nature, or human remains, or an 
unanticipated adverse effect on a previously identified non-rail 
historic property is made during the implementation of an activity 
on the Exempted Activities List, the Section 106 requirements at 36 
CFR 800.13 and/or applicable burial law, as appropriate depending on 
the nature of the resource, apply because effects to such resources 
are not covered by this program comment. At minimum, the Project 
Sponsor must cease all work in and secure the area and notify the 
federal agency within 72 hours. The federal agency will consult with 
SHPO, federally recognized Indian tribes, NHOs, and other 
stakeholders as appropriate, to determine the appropriate course of 
action. The Project Sponsor must comply with any applicable state or 
local law regarding the resource. If an undertaking involves 
multiple activities on the Exempted Activities List, those that do 
not involve or affect the non-rail resource, as determined by the 
federal agency, may continue.
    H. The Project Sponsor must comply with the requirements of any 
applicable easements, covenants, and/or state or local historic 
preservation ordinances. Other federal and state laws such as the 
National Environmental Policy Act and Section 4(f) of the USDOT Act 
also remain applicable to activities exempted from Section 106, as 
appropriate.

II. Exempted Activities List

A. Track and Trackbed

    1. Track and trackbed maintenance, repair, replacement, and 
upgrades within the existing footprint (i.e., existing subgrade, 
sub-ballast, ballast, and rails and crossties (track)). These 
activities must not include alterations to the trackbed that would 
result in a substantial visual change (i.e., elevation or alignment) 
in the relationship between the trackbed and the surrounding 
landscape or built environment.
    2. Reinstallation of double tracking on a currently single-
tracked line that had historically been double-tracked.

B. Bridges and Tunnels

    1. In-kind maintenance and repair of bridges and tunnels.
    2. In-kind replacement of bridge hardware and mechanical and 
electrical components (e.g., brackets, rivets, bearings, motors).
    3. Maintenance or repair of tunnel ventilation structures and 
associated equipment (e.g., fans, ducting).
    4. Replacement of tunnel ventilation structures that are not 
located within a previously identified historic district.
    5. Replacement of tunnel ventilation structures that are located 
and publicly visible within a previously identified historic 
district, provided the replaced structures are substantially the 
same size as or smaller than the existing structures and are 
visually compatible with the surrounding built environment.
    6. Maintenance, repair, or replacement of tunnel emergency 
egress hatchways.
    7. Maintenance, installation, repair, or replacement of 
lighting, signal and communications systems, railings, and other 
safety- and security-related equipment or elements located within 
the interiors of tunnels.
    8. Removal or replacement of any bridge or tunnel material or 
added-on element that is not part of the original construction.
    9. Actions to strengthen or repair deteriorating non-character 
defining structural components of bridges that are intended to 
maintain their useful life and safe use and that do not 
substantially alter the bridge from its existing appearance.
    10. The following activity must be performed or supervised by an 
SOI-qualified professional: In-kind replacement of character-
defining structural or non-structural components of a bridge 
superstructure or substructure that do not diminish the overall 
integrity of the bridge. This does not include demolition of a 
bridge and replacement with an entirely new structure.

C. Railroad and Rail Transit Buildings (e.g., Passenger Stations 
and Depots, Maintenance and Equipment Buildings, Interlocking 
Towers) and Boarding Platforms

    1. Modifications (e.g., repair, extension, widening, slope 
adjustments, changes in height) to non-character defining passenger 
platforms and walkways that are necessary to

[[Page 31080]]

meet Americans with Disabilities Act (ADA) requirements or other 
federal or municipal public or life safety codes and standards, 
provided those changes do not require associated improvements such 
as relocation of station doors, construction of ramps, etc. When the 
original material and construction used something other than common 
concrete or asphalt methods (e.g., decorative brick or tile), new 
materials (e.g., non-slip) may be used but must visually match the 
existing decorative pattern.
    2. Maintenance or repair of escalators, elevators, or stairs. 
Repair of decorative (i.e., non-mechanical) elements must be in-
kind. Repair of stairs constructed of material other than common 
concrete (e.g., brick, tile, marble) must be in-kind.
    3. Cleaning, painting, or refinishing of surfaces with a like 
color and where the products or methods used would not damage the 
original surface.
    4. Maintenance, repair, or replacement of fire or security alarm 
or fire suppression systems, physical access controls, security 
cameras, wireless internet, and similar safety, security, or 
computer equipment and devices.
    5. Installation of new fire or security alarm or fire 
suppression systems, physical access controls, security cameras, 
wireless internet, and similar safety, security, or computer 
equipment and devices, except within publicly accessible areas of 
stations or depots. Such new installations must, to the extent 
feasible and when appropriate, use a minimally obtrusive design; 
match the color of surrounding paint, wall coverings, finishes, 
etc.; avoid damaging or removing historic fabric; be attached to 
non-historic fabric; be concealed within existing enclosures or 
conduit or behind walls and ceilings; be co-located with existing 
similar modern equipment, etc.
    6. Maintenance, repair, or replacement of HVAC or electrical 
systems.
    7. Installation of new HVAC or electrical systems, except within 
publicly accessible areas of stations or depots. Such new 
installations must, to the extent feasible and when appropriate, use 
a minimally obtrusive design; match the color of surrounding paint, 
wall coverings, finishes, etc.; avoid damaging or removing historic 
fabric; be attached to non-historic fabric; be concealed within 
existing enclosures or conduit or behind walls and ceilings; be co-
located with existing similar modern equipment, etc.
    8. Minor ADA improvements at passenger stations that do not 
damage, cover, alter, or remove character-defining architectural 
spaces, features, or finishes. Examples include the installation of 
restroom stalls/partitions, hardware and fixtures such as grab bars, 
tilt frame mirrors, and sinks and toilets; tactile warning strips on 
floors, passenger walkways, and platforms; cane detectors; sidewalk 
curb cuts; automatic door openers; and handrails.
    9. Maintenance, repair, or replacement of previously installed 
ADA elements.
    10. Maintenance, repair, or replacement of pumps, air 
compressors, or fueling stations.
    11. Removal of mechanical equipment inside railroad and rail 
transit facilities not visible to the public. Examples include relay 
panels, switchgear, and track diagram boards. If the equipment to be 
removed includes obsolete or outdated technology, the Project 
Sponsor must contact the SHPO, railroad museums or railroad 
historical societies, museums, educational institutions, or similar 
entities to determine if there is an entity that may be interested 
in purchasing or receiving the equipment as a donation, as 
appropriate. The Project Sponsor must demonstrate to the federal 
agency that it has made a good faith effort to contact such parties 
prior to removal and disposition of such equipment.
    12. Addition of new mechanical equipment in basements, beneath 
platforms, in designated mechanical equipment areas, or in areas 
that are otherwise out of public view.
    13. Paving, painting, or striping of existing parking surfaces.
    14. In-kind maintenance or repair of platform boarding canopies 
and supports.
    15. In-kind maintenance or repair of architecturally distinctive 
light poles and fixtures.
    16. State-of-good-repair (SOGR) activities not included 
elsewhere in this section that are necessary to keep a station, 
depot, or other railroad or rail transit building inhabitable and 
safe, as required by applicable federal or municipal fire, life 
safety, or health codes or standards, and in transportation-related 
use that meet the following conditions:
    a. Maintenance and repair activities that affect character-
defining architectural features (e.g., elevator head houses and 
portals; roofs; doors; windows; stairs; platform canopies; columns; 
floors; ceilings) must be in-kind.
    b. SOGR activities do not include demolition, decommissioning, 
or mothballing of railroad or rail transit buildings that are not in 
use, or reconfiguring the interior spaces of passenger stations for 
a new use (e.g., enclosing a passenger waiting area to create new 
office, baggage handling, or event space).
    17. Maintenance, repair, or replacement activities that are not 
included elsewhere on this list and involve non-character-defining 
non-structural elements, features, systems, hardware, and fixtures 
in the interior or on the exterior of non-station railroad or rail 
transit buildings.
    18. In-kind maintenance or repair of original architectural 
features in the interior or on the exterior of passenger stations 
(e.g., handrails, ticket counters, mouldings).
    19. In-kind maintenance or repair of character-defining signage 
(e.g., station identifier, wayfinding) within publicly accessible 
areas of stations or depots.
    20. Maintenance, repair, or replacement of non-character 
defining signage (e.g., station identifier, wayfinding) within 
publicly accessible areas of stations or depots.
    21. The following activities must be performed or supervised by 
an SOI-qualified professional:
    a. Replacement of character defining escalators, elevators, or 
stairs, and decorative elements related thereto.
    b. ADA improvements at passenger stations that involve the 
modification or removal of character-defining features such as 
stairs, floors, ceilings, doors, windows, roofs, platform boarding 
canopies and supports, benches/seating, or ticket counters; or that 
involve the addition of new ramps, stairs, escalators, elevators, 
wheelchair lifts, wheelchair lift enclosures, station identifier and 
wayfinding signage, and public information display systems (PIDS).
    c. SOGR activities that include replacement of character-
defining architectural features or otherwise require substantial 
rehabilitation to address deteriorated conditions. As previously 
indicated, SOGR activities do not include demolition, 
decommissioning, or mothballing of railroad or rail transit 
buildings that are not in use, or reconfiguring the interior spaces 
of passenger stations for a new use (e.g., enclosing a passenger 
waiting area to create new office, baggage handling, or event 
space).
    d. Installation of new fire or security alarm or fire 
suppression systems, physical access controls, security cameras, 
wireless internet, and similar safety, security, or computer 
equipment and devices within publicly accessible areas of stations 
or depots.
    e. Installation of new HVAC or electrical systems within 
publicly accessible areas of stations or depots.
    f. Replacement of platform boarding canopies and supports.
    g. Replacement of architecturally distinctive light poles and 
fixtures.
    h. Replacement of original architectural features in the 
interior or on the exterior of passenger stations (e.g., handrails, 
ticket counters, mouldings).
    i. Replacement of character-defining signage (e.g., station 
identifier, wayfinding) within publicly accessible areas of stations 
or depots.

D. Signals, Communications, and Power Generation

    1. Maintenance, repair, or replacement of component parts of 
signal, communications, catenary, electric power systems, or other 
mechanical equipment that retains the visual appearance of the 
existing infrastructure. This includes replacement of individual 
signal masts or transmission lines, but does not include demolition 
and replacement of an entire catenary system or signal bridge.
    2. Maintenance, repair, or replacement of radio base stations.
    3. Maintenance, repair, or replacement of the mechanical 
components of traction power substations, e.g., transformers, 
circuit breakers, electrical switches. This does not include 
demolition and replacement of an entire substation.
    4. In-kind maintenance or repair of signal bungalows, signal 
houses, control houses, instrument houses, and structures of similar 
function.
    5. Installation, repair, or replacement of communications 
equipment on locomotives and rolling stock that are actively used 
for intercity passenger rail, rail transit, or freight rail. This 
does not apply to historic trains used for tourism.
    6. The following activities must be performed or supervised by 
an SOI-qualified professional:
    a. Replacement of signal bungalows, signal houses, control 
houses, instrument houses, and structures of similar function.

[[Page 31081]]

E. Railroad and Rail Transit/Roadway At-Grade Crossings and Grade 
Separations

    1. Maintenance, repair, or rehabilitation of at-grade railroad 
and rail transit crossings including installation of railroad and 
rail transit crossing signs, signals, gates, warning devices and 
signage, highway traffic signal preemption, road markings, paving 
and resurfacing, and similar safety improvements.
    2. Replacement of at-grade railroad and rail transit crossings 
on existing railroads, rail transit lines, and roadways, including 
components such as crossing signs, signals, gates, warning devices 
and signage, highway traffic signal pre-emption, road markings, 
paving and resurfacing, and similar safety features.
    3. Expansion of sidewalks, constructed with common concrete or 
asphalt methods, along the sides of an existing at-grade railroad or 
rail transit crossing.
    4. In-kind maintenance or repair of grade-separated crossings of 
other transportation modes (highways, local roads, pedestrian 
underpasses).
    5. In-kind rehabilitation or replacement of grade-separated 
crossings of other transportation modes (highways, local roads, 
pedestrian underpasses). This does not include modifications to 
existing grade separation structures (e.g., bridges, overpasses) 
that would result in a substantial increase in height or overall 
massing or substantial change in appearance. Replacements must be 
substantially the same appearance and size as existing.
    6. Addition of lanes, turning lanes, road widening, and pavement 
markings at existing at-grade crossings when the crossing does not 
involve an individual National Register-listed or known historic 
roadway or a roadway that is a contributing resource to a National 
Register-listed or known historic district.
    7. Construction of curbs, gutters, or sidewalks adjacent to 
existing roadway at existing at-grade crossings when the crossing 
does not involve an individual National Register-listed or eligible 
roadway or a roadway that is a contributing resource to a National 
Register-listed or eligible historic district.
    8. The following activities must be performed or supervised by 
an SOI-qualified professional:
    a. Addition of lanes, turning lanes, road widening, and pavement 
markings at existing at-grade crossings when the crossing involves 
an individual National Register-listed or eligible roadway or a 
roadway that is a contributing resource to a National Register-
listed or eligible historic district.
    b. Construction of curbs, gutters, or sidewalks adjacent to 
existing roadway at existing at-grade crossings when the crossing 
involves an individual National Register-listed or eligible roadway 
or a roadway that is a contributing resource to a National Register-
listed or eligible historic district.

F. Safety and Security

    1. Maintenance, repair, replacement, or installation of the 
following security and intrusion prevention devices adjacent to 
tracks or in railyards or rail transit yards: Security cameras, 
closed captioned television (CCTV) systems, light poles and 
fixtures, bollards, emergency call boxes, access card readers, and 
warning signage.
    2. Maintenance, repair, replacement, or installation of security 
and safety fencing, guardrails, and similar intrusion prevention and 
fall protection measures.
    3. Maintenance, repair, replacement, or installation of safety 
equipment/fall protection equipment on rail bridges, signal bridges, 
or other non-station structures for the protection of rail workers 
or the public. Examples include railings, walkways, gates, tie-off 
safety cables, anchors, and warning signage.
    4. Maintenance, repair, replacement, or installation of wayside 
detection devices.
    5. Maintenance, repair, replacement, or installation of bridge 
clearance/strike beams.

G. Erosion Control, Rock Slopes, and Drainage

    1. Placement of riprap and similar bank stabilization methods to 
prevent erosion affecting bridges and waterways.
    2. Erosion control through slide and slope corrections.
    3. Rock removal and re-stabilization activities such as scaling 
and bolting.
    4. Maintenance, repair, or replacement of pre-cast concrete, 
cast iron, and corrugated metal culverts that lack stone or brick 
headwalls. This does not include culverts such as those built by the 
Civilian Conservation Corps or those made out of unique materials 
(e.g., a hollowed log).
    5. Expansion through horizontal elongation of pre-cast concrete, 
cast iron, and corrugated metal culverts that lack stone or brick 
headwalls for the purpose of improved drainage.
    6. Embankment stabilization or the re-establishment of ditch 
profiles.
    7. Corrections to drainage slopes, ditches, and pipes to 
alleviate improper drainage or changing alluvial patterns.
    8. In-kind maintenance, repair, or replacement of retaining 
walls. Replacements must be substantially the same size and 
appearance as existing.
    9. In-kind maintenance or repair of stone or brick culvert 
headwalls and wingwalls.
    10. Maintenance, repair, or replacement of culvert headwalls and 
wingwalls constructed of concrete.
    11. Maintenance, repair, or alterations to the interiors of 
culverts and related drainage pathways.
    12. The following activities must be performed or supervised by 
an SOI-qualified professional:
    a. Replacement of stone or brick culvert headwalls and 
wingwalls.
    b. Vertical extension of stone or brick culvert headwalls using 
in-kind materials and design compatible with existing.

H. Environmental Abatement

    1. Removal or abatement of environmental hazards such as 
asbestos, treated wood, and lead or heavy-metal coatings and 
paintings. Activities that replace coatings, paint, flooring 
materials, etc. must be of the same color and appearance as the 
materials that have been removed or abated.
    2. Removal of contaminated ballast, sub-ballast, subgrade, and 
soils.

I. Operations

    1. Establishment of quiet zones, including the installation of 
required warning devices and additional safety measures installed at 
grade crossings, that do not entail closing of existing roadways.
    2. Increased frequency of train or rail transit operations that 
do not result in noise or vibration impacts. The lead federal agency 
may, at its discretion, require a noise and vibration study be 
prepared by a qualified subject matter expert before approving the 
undertaking.
    3. Temporary storage of rail cars or rail transit cars on active 
rail lines.
    4. Maintenance, repair, or replacement of noise barriers. If a 
replaced noise barrier is to be located and publicly visible within 
a National Register-listed or eligible historic district, it must be 
substantially the same size as or smaller than existing and be 
visually compatible with the surrounding built environment.

J. Landscaping, Access Roads, and Laydown Areas

    1. In-kind replacement of landscaping.
    2. Mowing, seeding/reseeding, planting, tree trimming, brush 
removal, or other similar groundcover maintenance activities.
    3. Maintenance of access roads and lay-down areas.

K. Utilities

    1. Maintenance, repair, or replacement of above-ground and 
underground utilities (e.g., electrical, sewer, compressed air 
lines, fuel lines, fiber optic cable).
    2. Maintenance, repair, replacement, or installation of utility 
lines and conduit inside tunnels that does not involve affixing new 
equipment to the exterior face of tunnel portals.
    3. Affixing conduit, repeaters, antennae, and similar small-
scale equipment on the exterior masonry face of tunnel portals where 
the color of the equipment matches the existing masonry in order to 
limit its visibility and does not damage the masonry construction.

L. Bicycle and Pedestrian Facilities, Shared Use Paths, and Other 
Trails

    1. Maintenance, repair, or replacement of existing bicycle 
lanes, pedestrian walkways, shared use paths (e.g., bicycle, 
pedestrian), and other trails intended for non-motorized 
transportation that are constructed with common materials (i.e., 
non-decorative concrete, asphalt, pavement, or gravel).
    2. Adding lanes to existing shared use paths or other trails 
constructed with common materials.
    3. Adding at-grade crossings for pedestrians and bicycle 
facilities, shared use paths, or other trails.
    4. Maintenance, repair, replacement, or installation of bicycle 
aid stations, bicycle racks, and bicycle storage sheds, and similar 
amenities. Installation of new bicycle storage structures must be 
visually compatible with the surrounding building environment when 
located adjacent to historic passenger stations or within National 
Register-listed or eligible historic districts.
    5. Maintenance, repair, replacement, or installation of 
information kiosks or displays,

[[Page 31082]]

wayfinding signage, and similar amenities for pedestrian, 
bicyclists, or other path or trail users.
    6. Maintenance, repair, or replacement of curbs, gutters, or 
sidewalks constructed with common materials.

M. Construction/Installation of New Railroad or Rail Transit 
Infrastructure

    For any of the activities listed below, the federal agency shall 
require the work be performed by or under the supervision of an SOI-
qualified professional, based on the scope of work and location of a 
specific proposal. As with all activities in this Exempted 
Activities List, but especially important for construction/
installation of new railroad or Rail Transit infrastructure, 
consideration must be given to the potential for effects to non-rail 
properties within or adjacent to the rail ROW.
    1. Minor new construction and installation of railroad or rail 
transit infrastructure that is compatible with the scale, size, and 
type of existing rail infrastructure, such as buildings for housing 
telecommunications equipment, signal instruments, and similar 
equipment; storage buildings that house landscaping or maintenance 
of way equipment or specialty vehicles for track repairs or 
inspections; locomotive and train or rail transit car service and 
inspection facilities; trailers or temporary structures for housing 
rail personnel; fueling stations; underground utilities; overhead 
utilities, transmission lines, and communications poles, and 
signage. This does not include substantial new construction, such as 
construction of new passenger stations, railyards or rail transit 
yards, or tunnels, or demolition of existing structures.
    2. Construction of new at-grade crossings.
    3. Construction of new erosion control, drainage, or stormwater 
management infrastructure, such as culverts or retaining walls.

(END OF DOCUMENT)

    Authority: 36 CFR 800.14(e).

    Dated: June 24, 2019.
John M. Fowler,
Executive Director.

[FR Doc. 2019-13779 Filed 6-27-19; 8:45 am]
BILLING CODE 4310-K6-P